Free Speech and the Abortion Distortion

Today, the Supreme Court heard oral argument in McCullen v. Coakley, in which Eleanor McCullen is challenging a Massachusetts law that prevents her from peacefully talking to women on public sidewalks outside abortion clinics about their options.

The right to speak your mind—even about unpopular topics—is a core freedom upon which the United States was founded, and sidewalks are the quintessential public forum for peaceful speech.

Yet in 2000’s Hill v. Colorado, the Supreme Court upheld a law that created a “buffer zone” around abortion clinics and restricted pro-life speech. The creation of a buffer zone clashes with a core freedom of individuals who wish to counsel women against having abortions. In Hill, the Court upended more than 50 years of First Amendment jurisprudence, grounding its opinion in a newly discovered “right to be left alone” that overrides free speech. Justice Antonin Scalia pointed out in his dissent that this decision was part of a scheme to “distort” many traditional constitutional principles in favor of abortion.

The Hill decision met criticism from the right and the left (even from noted liberal academics such as Laurence Tribe and Kathleen Sullivan), but 14 years later, the Supreme Court has a chance to reverse course.

Following the Hill decision, Massachusetts enacted a criminal law that prohibits people from coming within 35 feet of abortion clinics unless they are patients entering the clinic or employees “acting within the scope of their employment.” This buffer zone prevents McCullen and others from peacefully positioning themselves on public sidewalks to offer support, information, and practical assistance to women who may feel like they are out of options.

Massachusetts claims that the law is necessary to prevent protestors from blocking access to and harassing women entering the abortion clinics, but the federal Freedom of Access to Clinic Entrances Act already prohibits such obstruction, and while 45 prosecutions have been brought under that law, none of them has been in Massachusetts. As one amici for McCullen pointed out, Massachusetts “make[s] off-limits…the only plot of land on earth where their message has any plausible likelihood of achieving its desired effect.” Massachusetts is attempting to shut down speech that it doesn’t like—which directly contravenes the First Amendment.

The First Amendment was intended to protect even the most controversial speech. In Snyder v. Phelps in 2011, the Supreme Court ruled in favor of the Westboro Baptist Church, which pickets military funerals over its belief that God hates the United States, particularly its military, for tolerating homosexuality. They appear at these funerals with signs depicting messages such as “Thank God for dead soldiers” and “You’re going to hell.” Despite the fact that the Westboro Baptists’ presence at these funerals inflicts great pain on the families of fallen soldiers, the Supreme Court held that speech “cannot be restricted simply because it is upsetting or arouses contempt.” Chief Justice John Roberts wrote, “As a Nation we have chosen…to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Supreme Court has been offered the chance to overrule Hill v. Colorado and restore First Amendment protections for peaceful pro-life advocates seeking to counsel women who are considering having abortions. Massachusetts’s buffer zone is simply a restriction of speech it does not like, and that should not be allowed to stand.

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Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read her research.

John G. Malcolm oversees The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law as director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies. Read his research.

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